Citation Nr: 1315177
Decision Date: 05/08/13 Archive Date: 05/15/13
DOCKET NO. 09-39 817 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for lumbar disc disease status post lumbar surgery, also claimed as a lower back condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Kirscher Strauss, Counsel
INTRODUCTION
The Veteran had active service from June 1961 to August 1963 and from August 1963 to February 1965.
This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In April 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file.
In December 2011, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development. The development has been completed and the case is before the Board for final review.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran's assertions regarding the onset of symptoms of a low back disability are not credible.
2. The most probative evidence of record fails to establish that the Veteran's lumbar spine disability was manifested during military service or within one year of separation from service, or that a low back disability is related to active service.
CONCLUSION OF LAW
The criteria for establishing service connection for lumbar disc disease status post lumbar surgery have not been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the issuance of a late notice may be cured by re-adjudication.
In this case, in a November 2007 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in July 2012.
The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, post-service private and VA treatment records, records from the Social Security Administration, VA examination and medical opinion reports, hearing testimony, and lay statements.
The Board also notes that the action requested in the prior remand has been undertaken. Here, the Veteran was afforded an additional VA examination to determine whether any back disability preexisted military service and whether any low back disability is related to the back pain and injury reported in service. In addition, the Board also requested an expert medical opinion from a VA neurosurgeon regarding the etiology of the current low back disability. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so.
II. Analysis
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To establish service connection for a present disability, there must be: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009).
For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012).
VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A.
§§ 1111, 1132, 1137.
The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1).
For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability:
When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition." 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322.
The Veteran contends that he has a current low back disability due to falling into a fox hole during military service and that he continued to experience low back problems since that injury to the present time.
A June 1963 service treatment record from Fort Riley reflects the Veteran's complaint of having back trouble. He stated that he fell off a horse when he was 14 years old, and the previous day he was doing PT [physical training] and pulled a muscle. No diagnosis was rendered; however, the examiner taped the area. The remaining service treatment records were silent for complaints, findings, diagnosis, or treatment for back problems.
In reports of medical history dated in June 1961 at enlistment, August 1963 at reenlistment, and November 1964 at separation, the Veteran denied currently or ever having arthritis or rheumatism; bone, joint, or other deformity; ever wearing a brace or back support; or having any illness or injury other than those already noted, which was UCD [usual childhood diseases], without sequalae. In each corresponding medical examination report, clinical evaluation of the spine was reported as normal.
A January 1978 post-service history report authored by G. Papp, D.O., from Doctor's Hospital documents that the Veteran presented to the hospital for the first time with a chief complaint of low back pain with radiation to his left leg. The Veteran reported an onset of back pain in June [sic] 1977 secondary to a jumping injury from a semi-trailer truck approximately three feet to the ground. He described both feet hitting the ground and feeling a pop in his back and increased low back pain. He also reported a one to one and a half pack per day history of tobacco use with a positive history of up to three packs per day with approximately a 30 to 40 pack year history. He was admitted and underwent an EMG and lumbar myelogram. In February 1978 he underwent a lower lumbar nerve root compression and partial left lumbar laminectomy with excision of herniated disc performed by Dr. Papp. The post-operative diagnosis was lower lumbar nerve root compression due to herniated nucleus pulposus L4-5 on the left and herniated nucleus pulposus L5-S1 on the left.
In an August 1980 Specialist's Report for the State Industrial Commission, the examining physician outlined the Veteran's reported history of jumping out of a semi-trailer in August 1977 while working for a furniture company, feeling his back pop, and developing severe pain in his back and legs. The Veteran stated that the February 1978 surgery provided a great deal of relief, but he continued to have back pain. He was off work for one year and returned to work as a mechanic. Later he worked as a shop foreman for five months until he was laid off. He obtained a similar job, but was laid off again after several months. The physician considered the Veteran to have a temporary total impairment. A second Specialist's Report by a different physician in September 1981 reflected the same history of injury in August 1977 and opinion that the Veteran was temporarily totally disabled.
In the Veteran's October 1980 application for SSA disability benefits due to a back injury, he reported that his injury first bothered him on August 11, 1977. He indicated that according to worker's compensation he was 100 percent disabled. He identified his usual job as a truck mechanic before becoming disabled and described his duties as total mechanical repairs on semi tractors and trailers. He elaborated that the job required excessive bending, lifting, and walking; he had to lift excessively every day; and he had to lift objects weighing up to 300 pounds. He also described a period of work as a mechanic shop foreman in which he supervised, did paperwork, and did some repair work. He stated that he quit due to physical pain and having to stand on concrete eight hours per day.
The SSA claim was initially denied, and he requested reconsideration in April 1981. Records dated in October 1981 from Riverside Methodist Hospital indicated that the Veteran was referred by Dr. Papp. An admission note described the Veteran's reported history of low back pain secondary to jumping from a truck to the ground. A personal history report authored on the same day by T. Hawk, M.D., reflected the Veteran's account of low back pain since 1977 when working on a truck. He underwent a decompressive lumbar laminectomy at L5 with foraminotomy of the left S1 nerve root performed by T. Hawk, M.D. A December 1981 evaluation by an orthopedic surgeon, which was addressed to the Veteran's attorney, again outlined the Veteran's reported history of sustaining a back injury in August 1977 when he jumped out of the way when the jack stand on a semi-trailer broke. An April 1982 decision by an Administrative Law Judge reflects that the Veteran testified that he injured his back in a job related accident in August 1977. The Judge concluded that the Veteran was entitled to SSA disability benefits based on his back disability.
The aforementioned post-service treatment records were contained within the Veteran's SSA records and received by VA in January 2009.
In January 1996 the Veteran filed a claim for VA nonservice-connected pension benefits using a VA Form 21-256 (Veteran's Application for Compensation or Pension); he crossed out the section designation for claiming a service-connected disability and wrote "NSC Pension Only." The Veteran stated that his disabilities included a "back condition since 1977 with surgery in [19]78 and [19]81" and a heart condition. He claimed to be totally disabled, indicating that he last worked in August 1977 and completed one year of college. Before becoming totally disabled he worked at a furniture company as a "diesel mech." for 24 months. He indicated that he had been receiving SSA income since 1981. The claim was denied in February 1996 because his family income exceeded the pension income limit.
In correspondence dated in February 1996, the Veteran clarified that his SSA income was for his disability and not retirement income. He also reported that his spouse was no longer working due to her medical condition.
In support of his nonservice-connected pension claim, in March 1996 the Veteran submitted a complete duplicate of the records and files held by H. Dansby, M.D., and by D. Savage, M.D. In an August 1993 neurosurgery evaluation report from Dr. Savage, the Veteran reported that he initially injured his back on the job in 1977 and had not worked since that time. He underwent what sounded to Dr. Savage like an L4-5 and L5-S1 discectomy in February 1978 and a repeat of the operation in October 1981. The neurosurgeon reportedly told the Veteran after the second operation that he had a significant amount of arachnoiditis and epidural fibrosis. He reported chronic back pain, which had become excruciating recently. The Veteran disclosed that he currently smoked. The assessment was most likely myofascial pain syndrome with referred pain. Dr. Savage ordered an MRI to rule out recurrent herniated disc. An August 1993 follow-up report from Dr. Savage indicated that the MRI scan revealed fulminant arachnoiditis at the previous surgical sites. He remarked that it was probably the worst case he had ever seen of arachnoiditis. The Veteran stated that he was much more comfortable after having started Vicodin and Flexeril. Dr. Savage added Toradol and sent the Veteran for a trial of epidural steroids.
The records dated from July 1992 to August 1994 from H. Dansby, M.D., a private cardiologist, primarily pertained to the Veteran's heart disease. A July 1992 note reflects that the Veteran was admitted to Cape Coral Hospital for unstable angina. He reported a history of chronic low back pain with osteoarthritis status post lumbar laminectomy in 1978 and 1981 and that he currently smoked about one pack of cigarettes per day. During an initial cardiology consultation with Dr. Dansby in July 1992, the Veteran reported that he retired due to back problems and was a diesel mechanic and a forklift operator. He stated that he had been a pack-a-day smoker for many years. The July 1992 discharge summary from that initial admission noted that the Veteran was cautioned to stop his heavy cigarette smoking.
An August 1994 discharge summary authored by Dr. Dansby indicated that the Veteran continued to smoke one pack of cigarettes per day in spite of multiple problems with vascular disease. Dr. Dansby stated that the Veteran was counseled in great detail and warned that his lifestyle was not conducive to a satisfactory outcome for his vascular disease; he was referred to Nicotine Anonymous and was offered nicotine patches.
In an April 1996 rating decision, the RO resolved reasonable doubt in favor of the Veteran and granted nonservice-connected pension benefits on the basis of his medical history of unstable angina with recurrence of critical coronary artery disease, multiple percutaneous transluminal angioplasties, hyperlipidemia, mitral valve prolapse; and L4-L5 discectomy with arachnoiditis. A September 1996 letter from the Social Security Administration identified the Veteran's disability onset date in May 1979 and first month of SSA entitlement in October 1979. His VA pension benefits were later stopped because he failed to return an income statement.
A November 2006 VA surgery history and physical report from the Miami VA Medical Center (VAMC) reflects the Veteran's reported history of chronic low back pain since August 1977 after jumping into a fox hole and from working as a mechanic. He also reported a history of smoking a half pack of cigarettes per day and occupational history as a diesel mechanic. Subsequent records from the Miami VAMC dated to April 2012 and from the Bay Pines VAMC dated to July 2012, which are associated with the electronic Virtual VA claims file, reflect ongoing evaluation and treatment for the Veteran's low back disability.
The Veteran's claim for service connection for a low back disability was received in October 2007. He asserted that his claimed low back disability was incurred due to a fall while performing a field training exercise while stationed at Fort Riley in 1962. He stated that he sought treatment for his back and was given three days of bed rest. He reported that his low back disorder became "progressively worse throughout the rest of his tour in the Army" and it "progressively deteriorated over the years" until he required low back surgery in 1978 at Doctors North Hospital and again in 1982 at Riverside Methodist Hospital. He stated that he had an additional surgery in July 2007.
November 2007 correspondence from Doctors North Hospital and February 2008 correspondence from Riverside Methodist Hospital indicated that the Veteran's records were no longer available because each hospital retains records for 22 years. Another letter from Riverside Methodist Hospital dated in March 2008 indicated that the Veteran's last visit there was in October 1981. The Board notes that records from both of these hospitals were contained within the Veteran's SSA records, which were received by VA in January 2009.
During a November 2007 VA thoracic surgery history and physical, the Veteran reported that he started smoking at age 17 and smoked one pack of cigarettes per day until age 50. He described his occupation as retired automotive mechanic and indicated that he became medically disabled at age 33 due to back pain. During a November 2007 thoracic surgery consultation, he again reported a 33-pack-year history of cigarette smoking, quitting approximately 13 years ago [in 1994].
The Veteran was afforded a VA spine examination in April 2008. The Veteran stated that he injured his lower back in 1963 when he tripped into a fox hole on training maneuvers and he was unable to do a 12-mile march with gear after this event. He stated that he had lumbar pain since this incident, which worsened over the years. He also reported that he was pulling a tire off of a semi truck and flipped backwards onto his back in 1977.
Following a review of the claims file and examination, the examiner opined that it was less likely as not that the current lumbar spine disability was related to military service, and it was [as] likely as not related to post-service events; the examiner also opined that it was less likely as not related to a pre-service event. The examiner supported his medical opinions noting that while there was documentation in the service treatment records that the Veteran reported falling off a horse at age 14, entrance physical examination was silent for back problems. Also, the examiner noted that the Veteran was able to serve four years of active service with only one complaint of back pain documented in 1963 when the Veteran pulled a muscle in physical training, and separation physical examination was silent for back problems. Regarding post-service events, the examiner observed that there was documentation from a neurosurgeon in August 1993 that the Veteran injured his back at work in 1977, he was unable to work, and he had been on Social Security disability since 1981 or 1982.
In his December 2008 notice of disagreement after the claim for service connection was denied, the Veteran claimed that he had showed that there was a continuance of treatment for his back disability. In his October 2009 substantive appeal, he stated that he was seen during military service for his back and told to take aspirin and "suck it up." He asserted that after his discharge he continued to have pain and periods of incapacitation until the present time.
In April 2011 the Veteran testified before the Board that while on active duty in 1963 at Fort Riley, Kansas, he injured his back as a result of a fall sustained during training and had suffered ever since. Specifically, the Veteran stated he fell into a "fox hole that was not filled in," hit his back, and there was a pop. He stated he was treated by a medic who told him it was a pulled muscle and instructed him to take aspirin. The Veteran testified that since that injury he experienced difficulty carrying out his duties and training. He stated he went to sick call but was given the same diagnosis and instruction as the medic who treated him when he initially injured his back. The Veteran testified he experienced significant pain and aggravation since this injury in service.
He further testified that he sought medical treatment for his back soon after separation and on a continuous basis since discharge from service, recalling that he saw Dr. Papp in the 1960s. He stated that Dr. Papp, an orthopedic surgeon, did his first back surgery in 1977 and he later saw a neurosurgeon, Dr. Hawk, who did his second surgery. He testified that he first saw Dr. Hawk "roughly three years after originally seeing Dr. Papp." He added that they tried manipulations prior to having surgery. When asked whether any doctor had ever told him that his current back disability was related to the injury sustained during active duty, he replied that he was "not quite sure if the doctors put it in the computer or not." He stated that the April 2008 VA examiner "got the story wrong." He clarified that a tire did not fall on him; instead, he jumped out of the back of a truck to help a coworker who had injured himself. He emphasized that the first major injury was during service and everything following that incident was only a continuation of the condition.
The Veteran was afforded an additional VA spine examination in January 2012. The Veteran related that he initially injured his back when he fell into a fox hole while running at night during a field exercise and had immediate back pain. He stated that he was seen by a field medic and given three days off duty. He reported that his back pain persisted and progressed ever since. He reported that he was first treated by a civilian doctor ten years after active duty and had two surgeries. Following a review of the claims file and physical examination, the diagnosis was lumbago and lumbar degenerative disc disease. The examining physician opined that the current back disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner reasoned that although the Veteran related an in-service fall, his service records had no evidence of treatment for significant back injury and he had not seen civilian physicians until over ten years after separation from active duty service. The examiner also noted that the Veteran's fall from a horse prior to service with possible minor compression fractures would not be aggravated beyond the normal course of disease without record of significant back injury in service, which is not documented.
In correspondence dated in July 2012, the Veteran asserted that he did seek medical help as far back as 1965 for his back. He stated that he went to a private physician at that time and those records are no longer available because they were lost or destroyed.
In January 2013 the Board requested an expert medical opinion to determine whether the Veteran's current lumbago and/or lumbar spine degenerative disc disease was caused by or incurred in active military service. For purposes of this medical opinion only, the expert was instructed to accept as credible the Veteran's lay statements regarding (1) continuous back pain since an in-service back injury, (2) visits to a chiropractor five years after service discharge, and (3) a visit to a physician ten years after service discharge.
In February 2013, a VA neurosurgeon, who is also a professor of neurosurgery and the program director of a university neurosurgery residency, opined that based on his review of the records, the Veteran's lumbar problems were not caused by his military service. He noted the Veteran's assertion that he injured his back in a fox hole during his first period of service and stated that he saw no evidence to support that the lumbar spine condition was a service-connected condition. He observed that the low back pain had resolved and he had no complaints at discharge from the military. He noted that the Veteran reinjured his low back while working 13 years later in 1977 and that his workup showed degenerative disc disease followed by a number of lumbar spine surgeries. He concluded that the Veteran's history of smoking cigarettes heavily was the cause of his current lumbar problems. He disclosed that he had 26 years of experience as a spine surgeon and explained that tobacco abuse is known to accelerate lumbar degenerative arthritis three-fold.
The Veteran responded to the February 2013 VA medical opinion stating that he was never a heavy smoker; he used to smoke about 3/4 pack a day. He stated that he never worked as a diesel mechanic and due to his back condition, he would not have been able to perform that type of work. He stated that he was a shop foreman who supervised and was not involved in lifting and bending all day.
Having reviewed the entire claims file, including the Virtual VA claims file, the Board finds that service connection for a low back disability is not warranted.
Regarding any preexisting back disability, the Board notes that no disability was noted on the Veteran's June 1961 entrance examination. Consequently, the Veteran was presumed to have been in sound condition. As such, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service.
Although the Veteran reported in June 1963 that he fell off a horse at age 14, the Veteran does not contend and the evidence does not reflect that he had a preexisting back disability. There were no complaints or clinical findings related to any spine disorder upon entrance into service nor was there any clinical evidence showing that he was diagnosed with or treated for any spine disorder prior to service. Therefore, it cannot be said that there is clear and unmistakable evidence showing that the Veteran had a preexisting low back disorder and the presumption of soundness is not rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Therefore, the Board's analysis must turn to the issue of whether a current disorder was incurred during the Veteran's active service. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-03 (July 16, 2003).
Initially, the Board acknowledges that the Veteran is competent to provide lay evidence of reporting his symptoms and that he has experienced back pain since falling into a fox hole in 1963 during active duty military service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
In addition to considering competence, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In weighing the credibility of lay assertions, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995).
In this regard, the Board also acknowledges that in the January 2013 request for an expert medical opinion, the Board instructed the expert "for purposes of [the requested] medical opinion only" to accept as credible the Veteran's lay statements as outline above. However, following a detailed review of the entire claims file, for the reasons discussed below, the Board finds that the Veteran is not credible.
First, and foremost, his statements made in support of his claim regarding the onset of the current problems and continuity of back symptomatology since military service are inconsistent with prior statements he made to medical providers in the course of seeking medical treatment for his back disability. For example, in statements to Drs. Papp, Hawk, and Savage he consistently reported the onset of his back pain as August 1977 due to a workplace injury. The Board finds that these statements regarding the onset of his current low back problems are more believable because each was made for the purpose of seeking medical care, and the statements are internally consistent. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). However, his remote post-service statements, which he made in the course of seeking VA monetary benefits, that he experienced back pain since military service plainly contrast with his multiple prior statements. Notably, before filing the claim for service connection, he never mentioned a military injury or even his military service generally to any of the many medical professionals he saw after his 1977 back injury.
Similarly, his statements made in support of his present claim are inconsistent with his prior statements made in the course of seeking SSA disability benefits due to the 1977 workplace injury and in the course of seeking VA nonservice-connected pension benefits. In his SSA application and during a hearing before an SSA Administrative Law Judge, for example, he reported that his back first bothered him in August 1977 due to a workplace injury. He signed his SSA application, acknowledging that making a false statement or misrepresentation of a material fact was a punishable crime under Federal law and certifying that his answers to the questions on the form were true. In his January 1996 application for VA nonservice-connected pension benefits, he again stated that he had been disabled since 1977 due to a back condition, indicating that prior to becoming disabled he worked as a diesel mechanic at a furniture company. He signed the VA application, certifying that his statements were true and complete to the best of his knowledge and belief.
In reviewing the claims file for a continuity of symptomatology of back problems since the June 1963 report of back trouble and pulling a muscle during physical training, the Board points out that his service treatment records contain no evidence of subsequent complaints or treatment for back problems. Moreover, the August 1963 and November 1964 reports of medical history include space to identify and fully explain any injuries, but none was identified - despite fully completing both forms. In addition, the August 1963 reenlistment examination and November 1964 separation examination both document a normal spine on clinical evaluation. Accordingly, while the Board does not doubt that he fell into a fox hole in 1963, the Board finds that the reenlistment and separation reports tend to contradict the assertion that the Veteran experienced ongoing back problems since the June 1963. See Kahana v. Shinseki, 24 Vet. App. 428, 438-41 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board, as factfinder, to draw a reasonable inference).
The Board also finds that some of the Veteran's statements during the April 2011 Board hearing are inconsistent with other evidence of record. For example, the Veteran testified under oath that he had received continuous treatment for back problems since service and recalled that Dr. Papp had treated him since the 1960s. However, the January 1978 history report and other records authored by Dr. Papp reflect a reported onset of back problems in 1977 and do not reflect a history of prior back treatment by Dr. Papp or other medical professionals, or a history of prior back problems. Furthermore, because the Veteran's reported timeline of seeing Dr. Hawk "roughly three years after originally seeing Dr. Papp" is confirmed by medical evidence of record, which shows treatment by Dr. Papp in 1978 and that he referred the Veteran to Dr. Hawk for treatment in 1981, his testimony that he received treatment from Dr. Papp since the 1960s is not credible because the Veteran has provided two contradictory statements regarding when he started treatment with Dr. Papp, either in the 1960s or in 1978.
Similarly, the Veteran testified that he was treated soon after separation and on a continuous basis; however, during the January 2012 VA examination, he stated that he was first treated by a civilian doctor for his back ten years after service. In this case, his statement to the January 2012 VA examiner appears to be generally consistent with the competent medical evidence of record, which reflects a clear onset of back problems since the August 1977 workplace injury and a continuity of symptoms and treatment since that injury.
Finally, the Veteran assertion in February 2013 that he never worked as a diesel mechanic in contradicted by multiple prior statements made to medical professionals and in the course of seeking various compensation benefits.
In summary, the Board finds more credible the Veteran's numerous, consistent prior statements that his low back disability began in August 1977 due to a workplace injury to be more credible than his remote assertions first made more than 40 years after separation from service that his low back disability was incurred in service and progressed throughout his remaining active duty service to the present time.
Turning to the medical opinion evidence, the Court has held that the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Finally, the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
The Board finds that the April 2008 opinion by the VA examiner is persuasive and probative evidence against the claim for service connection for a low back disability because it was based on a review of the claims file, examination of the Veteran, and was supported by an articulated medical explanation that is consistent with the remaining record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Here, the examiner detailed the review of the claims file, including service records that did not mention or document back problems at reenlistment or separation, and post-service private treatment records reflecting an onset of back problems since an August 1977 workplace injury. The Board finds that the examiner's conclusion that the current back disability is less likely related to service and more likely related to post-service events is consistent with the record, which shows a single complaint of back problems in June 1963 and a post-service on-the-job back injury in August 1977 followed by ongoing evaluation and treatment for disability of the lumbar spine since the injury.
The Board also finds the February 2013 opinion by the VA neurosurgeon to be persuasive and probative evidence against the claim for service connection for a low back disability because the conclusion that the current lumbar problems are related to tobacco abuse is consistent with the Veteran's many prior statements to treating physicians in which he disclosed smoking at least a pack per day for many years.
For all the foregoing reasons, the Board finds that service connection for a low back disability is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
Entitlement to service connection for lumbar disc disease status post lumbar surgery is denied.
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J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs